On appeal from the Burlington County Oyer and Terminer Court.
For the plaintiffs in error, Jay B. Tomlinson and Stanley K. Heilbron.
For the defendant in error, Howard Eastwood, prosecutor of the Pleas.
The opinion of the court was delivered by
BODINE, J. The plaintiffs in error (hereinafter called defendants) were convicted of murder in the first degree. They twice confessed the crime. The proofs showed that the murdered man was killed by bullets fired from a revolver owned by the defendant Ciemiengo. This was later found at his home with three empty shells in the chamber. Two of the shots fired had entered the body of the deceased, the other went wild but was located. Facts and circumstances proved at the trial strongly corroborate the confessions.
Assignments of error neither argued nor referred to in the brief will not be considered.
(1) It is suggested that the examination by the State of the witnesses, Therrien and Malseed, was improper. Not so. These witnesses were among the first to arrive at the home of the deceased. Therrien had gone to the house to purchase eggs, but discovered the dead body. He immediately left and sought out his neighbor, Malseed, who returned with him to the place. The examination complained of was as to whether or not they had observed blood running. The state, at the trial, surprised by testimony different from that contained in prior written statements made by each of the witnesses, was able to neutralize an adverse effect. State v. D'Adame, 84 N.J.L. 386; State v. Bassone, 109 Id. 176.
(2) It is argued that there was error in limiting the cross-examination of a medical expert so as to preclude a question as to whether the wound in the neck was in the part of the body ordinarily clothed. The medical witness had made a post mortem examination. At that time there was no clothing upon the body. The witness did not appear to have any knowledge as to the deceased's clothing. There was an abundance of proof as to the condition of the deceased's body
at the time the murder was discovered, which was very presently after the occurrence. In no sense does it appear that the defendants were prejudiced by the ruling, nor can we see how the question was material or proper.
(3) When the police officers arrived at the scene of the murder, they found that the deceased had not taken his newspaper from the letter box. The defense contended that this indicated that the deceased had died perhaps the day before the discovery of the body. The State having offered proof otherwise, was justified in showing that on other occasions he had failed to promptly remove his mail from the letter box.
(4) There was an abundance of evidence to support the ruling of the trial court that the confessions were voluntary. The rule is that such finding is not reviewable on error, if there be any legal evidence to support it. State v. Compo, there be any legal evidence to support it. State v. Comp, 108 N.J.L. 499; State v. Favorito, 115 Id. 197.
(5) We can see no error in excluding testimony as to whether or not the kitchen table was set for supper. The question, as framed, was not proper cross-examination, and even if it were, we fail to see where there was any prejudice by the exclusion. Photographs admitted in evidence, and other testimony, clearly demonstrated the precise arrangements ...